Sandra Day O'Connor
This is the most impressive group all assembled to work and think and celebrate the Constitution. And I'm really pleased to have a chance to stay at say a few words to you tonight about justice, which is a very elusive concept. And it's been the subject of human aspiration throughout the history of the human race. 1998 marks the 200 and eighth anniversary of the adoption of the Bill of Rights. Our Bill of Rights comes closest to our American notion of personal freedom and justice. And my appreciation for the Bill of Rights. It's understandable because I spend a significant portion of my life working life thinking, arguing and writing about what it allows the government to do and what it does not allow. And yet after 17 years as a Supreme Court justice, I'm still awed by that document adopted 208 years ago. It's as vital and timely today as it's ever been. And I want to talk just a little bit about the history of the Bill of Rights, how it came to exist, and how our perspective on it has evolved. It was June of 1789 when James Madison stood up in the House of Representatives, and gave the speech in which he set out his first draft of what would eventually become the Bill of Rights. What prompted him to do that? History tells us that the Bill of Rights was not an accident. It represented the culmination of a long standing struggle between two groups. Trying to find the proper balance between the rights of individuals and states and the need for a strong central government. People not familiar with history, have a basic misconception about who was really responsible for the Bill of Rights. People tend to think it was the same people who drafted the constitution that they draft the Bill of Rights, but not so. In fact, it was the very people who opposed the Constitution, who fought for the Bill of Rights. The Bill of Rights owes its existence to a very important political compromise. The battle was hard fought. And as it turned out, the anti Federalists ended up with some influence because in some state legislatures, the anti federalist l the bounce, and when the constitution was submitted to the states or adoption, key states Such as Massachusetts and Virginia refused to ratify the Constitution unless a Bill of Rights was added. And their argument was simple. They said many state constitutions already had a bill of rights. And they saw no reason why the Federal Constitution shouldn't have one as well. It didn't have to be long. All it was required was a short plane statement that powers not expressly conveyed to the new government were reserved to the States. as Patrick Cameron put it, why not say so? Is it? Is it because it will consume too much paper? He said? Well, the bottom line was that the constitution wasn't going to be ratified unless the Federalists compromised by agreeing to a bill of rights. And that's what they did.
And this is the irony of the Bill of Rights most constant most Americans think the Constitution and the Bill of Rights go hand in hand. But the most more appropriate analogy is ball and chain. The Bill of Rights was a restraint placed on the new federal government to keep it from running out of control. It was put there by a group that would have been perfectly happy if the constitution had never been ratified. And adding to the irony is this. While the Constitution is the cornerstone of our nation's commitment to principles of representative government and majority rule, the Bill of Rights is decidedly anti Majora terrarium. In the Bill of Rights. The drafters built a wall around certain individual freedoms, forever limiting the majority's ability to intrude on them. Now, as originally adopted, of course, the Bill of Rights was directed only at abuses of power by the federal government. Since then, however, The protection that affords to individual rights and liberties has changed and that's a result of the 14th amendment, proposed and ratified in the wake of the Civil War. It requires states to accord all citizens due process and equal protection of the laws. In a series of landmark decisions, the Supreme Court has interpreted the 14th amendment to incorporate most of the provisions of the bill of rights. In this way, the fundamental liberties guaranteed of the bill and the bill of rights are now enforced against the states as well as the federal government. And it is truly a remarkable document. on reading it, one can't help be struck by how concise it is. While countless thousands of pages have been written about it, the Bill of Rights itself sums up our most precious freedoms in more than in less than 500 words. Its brevity is not accidental. It's both simple and elegant. It's written in language that any literate American can understand and many can recite from memory. The Bill of Rights was intentionally drafted in broad sweeping terms allowing meaning to be developed in the context of changing times and current problems. Have the Bill of Rights been drafted? In narrower language it might not have withstood the passage of time. The world today is quite different from what it was 208 years ago. We have different problems, different priorities and different technologies than our forefathers. And as a result, several of the amendments are nevertheless vital, maybe even more so than when they were originally adopted. Come said The first amendment. It says Congress shall make no law abridging the freedom of speech. In drafting this provision, the primary concern was to protect political speech, specifically criticism of the government. In England, our forefathers criticism of the government had sometimes resulted in their being labeled traitors and severely punished. So it was an immense importance to the framers of the Bill of Rights in setting up their own government to permit all kinds of political speech to continue to vet political topics. No matter how calm or despised its substance might be. Indeed, the First Amendment has even been relied on to permit neo nazis to speak and march on a city that included Holocaust survivors. At the same time the First Amendment has been invoked to protect speech on all sorts of topics far removed from politics, topics that drafters never could have imagined. This is required the Supreme Court to grapple with a host of difficult issues. For example, one case question whether the First Amendment prohibits a high school principal from keeping stories about pregnancy and birth control out of the school paper. Another asked whether pharmacies have to be permitted to advertise their prices for over the counter medications. We've even had to decide whether a new hampshire residents who disagree with the state motto Live Free or Die can use tape to cover that part of their license plate.
Nevertheless, the guarantee of freedom of speech is not absolute. The court has held for example, that obscene speech is not protected. Further removed from the drafters vision of the First Amendment or cases holding that it protects conduct that conveys that particular message. For example, a court has ruled that our junior high school could not prohibit its students from wearing black armbands to protest the nation's involvement in the Vietnam conflict. Quite recently, the court held the First Amendment invalidated a statute criminalizing the burning of the American flag as a form of protest, although it does not invalidate a prohibition on nude dance in public places. Now another inexhaustible source of litigation has been the fourth amendment which prohibits it protects Americans against unreasonable searches and seizures. And this amendment which was included in the bill of rights to outlaw in this country, the much disruptor British practice of conducting unannounced house to house searches call writs of assistance. But the Fourth Amendment has come to stand for much more technological advances that James Madison and his contemporaries could never have foreseen, have made it possible for government to conduct a search without ever entering a person's home. For example, wiretaps allow conversations to be monitored and recorded without the speaker's knowledge. The court has held that to be a search. It has also determined that a search occurs when police officers fly over a backyard and a helicopter to find out whether marijuana is being grown. This is led to still other questions. We've been asked to decide whether it makes a difference that the police look down on a backyard with the naked eye, as opposed to using high powered binoculars. Well now questions like this are difficult No amount of study of James Madison's private notes is going to give us a conclusive answer. Making matters more complicated. The fourth amendment also guarantees the right of the people to be secure in their persons houses, papers and effects. Does that include their trash. criminal defendants have invoke the Fourth Amendment to prevent police from sorting through their garbage without a search warrant to find evidence of a crime. Justice technology has made the Fourth Amendment a murkier area than our forefathers could have expected. Biological Science has complicated the application of the Fifth Amendment. The Fifth Amendment guarantees that no one shall be compelled in any criminal case to be a witness against themselves. We all know from watching TV who bought the Fifth Amendment means that the government can't force someone accused of a crime to testify. Stem Cell. The inspiration for that amendment can be traced all the way back to the Inquisition, where heretics were routinely tortured until they confess their sins. But today, the government can often tell whether someone is guilty without an oral confession. It can run tests on a person's blood to see if they've been driving while intoxicated, or it can analyze their DNA structure to conclusively determine whether a single hair or a body fluid sample found that the scene of a crime belongs to that person. The question for the court has become whether the Fifth Amendment allows the government to compel the extraction and use of such evidence. Well, these amendments the first, the fourth and the fifth, adopted 208 years ago, remain a constant source of litigation and controversy today, time and technology Advanced. Yet these provisions remain vital because our forefathers recognize the importance of framing our most basic rights in broad language. On the other hand, some of the amendments have not been the source of much litigation, for example, a second and the third amendment. The second amendment provides that a well regulated militia being necessary to the security of a free state. The right of the people to keep and bear arms shall not be infringed. Although one aspect of it the right to bear arms is a subject that arouses strong feelings on both sides. It is not a topic that is often found its way into the courts. The other aspect concerning the importance of state militias receives level of public attention.
Now, cited even more rarely is the third amendment which declares that no soldiers Shall in time of peace be quartered and any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. Now, this had been a very real problem in 18th century England, soldiers were put up in people's homes and the homeowners were made responsible for providing Roman board. This has not been the policy in our country. While a government may in times of war, take young people out of their homes and graft them into the military. It rarely puts soldiers into people's houses. Now, there are two other amendments that I'll mention only briefly. They don't have no marine specific freedoms, like the right to counsel or the right to trial by jury. But they were nonetheless of vital significance to the people who drafted the Bill of Rights. They are the ninth and 10th amendments. The ninth Amendment says that rights enumerated and the bill of rights are not the only rights possessed by the people. Probably the most famous example of an unincorporated right is the right to privacy. In reasonable versus Connecticut. The court held the Constitution protects the right of privacy. The nature and description of an enumerated rights and the extent to which they're subject to the highest level of judicial scrutiny is hotly debated. But there's little doubt that some such rights do exist. And there's little doubt that we'll see more litigation to test and define them in the future.
The 10th amendment sets out on a single sentence, the anti Federalists main concern about the Constitution, that the new government not be permitted to usurp the sovereign authority of state governments. It says the powers not delegated to the United States by the Constitution, nor prohibited by up to the states are reserved to the states respectively or to the people. The amendment makes clear That the power of the federal government is derived from the States, and that the Constitution is not to be construed to convey any more power to the government than is absolutely necessary to carry out its enumerated functions. All other power belongs to the States. This understanding is consistent with the sentiments of the anti Federalists, who recognize that state legislatures were closer to the people and more accurately reflected the people's wishes. It's also consistent with the sentiment of the Federalists, who although they wanted a strong central government also wanted to preserve strong state governments to prevent the new government from abusing its power.
Well, one would think after two centuries, we would have figured it all out. But we have 200 some years after the adoption of the Bill of Rights courts are still grappling with Many of the same questions. Even though the First Amendment freedom of speech clause and the fourth amendments, prohibition of unlawful searches, have been the subject of litigation for 208 years, we're still working on the specifics. And new questions are always being raised questions that no one could have foreseen so many years ago. That's the beauty of the Bill of Rights. new questions arise and along with them come new understandings of what those amendments mean. For while the text of the Bill of Rights doesn't change, our perspective of of a involves evolves with the passage of time. And the adoption of the Bill of Rights is certainly deserving of our praise and thanksgiving, and of your study and your appreciation. It's part of our American contribution to the notice of freedom and of justice. Thank you for letting me We cannot